Similarly, Article 110 IPLA leads to the application of Swiss law where protected works are used within Switzerland. However Swiss law is not applicable if the protected work is used abroad.

Article 116 et seq. ILPA are applicable, if contracts with international aspects have been concluded (e.g. foreign contractual party, contractual service has to be performed abroad). In this case the co-contracting parties may determine the applicable law (so-called choice of law; for assignments of copyrights by contract Art. 122 IPLA).

In the absence of any such stipulation regulations are provided in Art. 116 et. seq. For contracts in the copyright domain this will be specifically settled in Art. 122.2 ILPA. In the absence of a choice of law Art. 122.1 stipulates the application of the law of the country of residence of the person granting the intellectual property rights (more in section 1.4).

FAQ

1.2-1 As part of the research for his dissertation, a Swiss student wants to photocopy an article published in a scientific journal which is available in the University of Geneva library. Which law will be applicable in this situation?

As the work is being used in Switzerland, Article 110 of the IPLAindicates that Swiss law is applicable, regardless of the nationality of the article's author or the editor of the journal.

1.2-2 A Cambodian artist creates a sculpture to stand in front of the University of Lucerne. The university would like to replace the photo in its brochures with one that includes the sculpture. Should Cambodian or Swiss law apply in this situation?

As the work is being used in Switzerland, Article 110 of the IPLAindicates that Swiss law is applicable. The nationality of the artist is not a decisive factor here, because the IPLA and the Swiss Copyright Act do not distinguish between Swiss nationals and foreign nationals and Swiss as well as foreign authors may claim the same protection.

1.2-3 A physics teacher wants to use some third-party content (e.g. a chart) which is probably protected by copyright and decides to use it in the lesson he is preparing. Which law applies to the use of this content?

To answer this question, we need to ask where the content is being used. If the content is being used in Switzerland, Swiss copyright law will apply. This is also the case if the teacher includes the third-party content in a PowerPoint presentation, which he prints out and hands out to his students and which he only does in Switzerland. The teacher benefits from the limiting provisions of copyright - in this case the private use for educational purposes, Art. 19.1 CopA - and he may use the content under certain conditions without consent of the author.

1.2-4 Can the authorisation for the use of the content without consent of the author by the limiting provision of private use for educational purposes justify using a work abroad?

The exceptions stipulated in Article 19 of the Swiss Copyright Act, that means the exception for educational purposes, do not apply outside Switzerland. The teacher’s use of copyrighted content abroad is not covered by Swiss law, but by the applicable foreign law. This means we need to be careful as the conditions for the use of a work provided for in foreign law could turn out to be more stringent.

About

CCdigitallaw is a national Competence Center in Digital Law that supports Swiss Higher Education Institutions (students, academic and administrative staff) in dealing with legal questions related to the digitization process and the use of new media and technologies.
To do so, the Center offers various services such as a detailed knowledge base, FAQs, a wide range of on- and offline training activities and an advising service.

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CCdigitallaw has been created through a project funded by swissuniversities. The center is the result of a collaboration between the Università della Svizzera italiana (USI), University of Basel (UNIBAS), University of Neuchâtel (UNINE), University of Geneva (UNIGE), and the Conference of Swiss Libraries (CBU-KUB).

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